SCO versus IBM case resurrected

A federal appeals court has now partially ruled in favour of the SCO Group, breathing new life into a lawsuit and a company - now bankrupt and nearly dead - that has been suing IBM for almost 15 years.

For those who came in late, UNIX distributor SCO attempted to claim it invented Linux and threatened to sue anyone who used it. SCO argued that the alleged presence of its proprietary code in the open source kernel devalued its proprietary code. By making the source code available, IBM had violated its licence agreement with SCO Group, according to SCO.

It might have been the biggest patent troll in history, but it was checked by IBM who took SCO to the cleaners before it could do too much damage.

Last year, US District Judge David Nuffer had ruled against SCO in two summary judgment orders, and the court refused to allow SCO to amend its initial complaint against IBM.

SCO soon appealed. On Monday, the 10th US Circuit Court of Appeals found that SCO’s claims of misappropriation could go forward while also upholding Judge Nuffer's other two orders.

Along the way, SCO filed for bankruptcy, and the group claimed that anyone who used Linux owed them money. All the while, Novell successfully claimed ownership of the allegedly infringing code and agreed to indemnify Linux users.

If SCO is ultimately successful, it could stand to take in billions of dollars from IBM, but it is incredibly unlikely at this point.

SCO has argued that IBM essentially stole, or misappropriated, its proprietary code (known as UnixWare System Release 4, or SVr4) in the May 4, 2001, release of the "Monterey operating system", a new version of UNIX designed for IBM’s "Power" processors. However, this Monterey OS was incomplete, as it lacked a compiler.

According to the 10th Circuit: "IBM released for general distribution a version of its proprietary AIX for Power product that included the code. SCO thus argues that IBM released a ‘sham’ version of the Monterey system to legitimise its general distribution of the AIX for Power product containing Santa Cruz’s code. (Aplt. Br. 2, 13.) This is the essence of misappropriation claim."

The case will now go back to Judge Nuffer in federal court in Salt Lake City.